SZBIC v Minister for Immigration - [2003] FMCA 524

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBIC v MINISTER FOR IMMIGRATION

[2003] FMCA 524

MIGRATION – Review of a decision of the Refugee Review Tribunal – refusal of a protection visa – decision previously the subject of a proceeding in the High Court which was remitted to the Federal Court – res judicata – issue estoppel – Anshun estoppel – abuse of process – application dismissed.

Australian Constitution 1901 (Cth), s.75(v)
Federal Magistrates Court Rules 2001(Cth)
Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)

BC v Minister for Immigration [2002] FCAFC 221
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
Plaintiff S157 of 2002 v Commonwealth (2003) 195ALR 24

Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589
Sharma v State Rail Authority of New South Wales (1988) 85 FCR 391
Somanader v Minister for Immigration [2000] FCA 1192

Thayananthan v Minister for Immigration [2003] FCA 1054
Trawl Industries of Australia Pty Limited (in liquidation) v Effem Foods Pty Limited (1992) 36 FCR 406
Walton v Gardiner (1992-93) 177 CLR 378 at 393

Applicant:

SZBIC

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1728 of 2003

Delivered on:

19 November 2003

Delivered at:

Sydney

Hearing date:

19 November 2003

Judgment of:

Driver FM

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondent:

Ms B Rayment
Sparke Helmore

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,164.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1728 of 2003

SZBIC

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

I have before me a notice of motion filed on 6 November 2003 seeking the summary dismissal of an application filed in this Court on 26 August 2003 for the review of a decision of the Refugee Review Tribunal (“the RRT”). The RRT refused an application for a protection visa.
The notice of motion seeks the summary dismissal of the application pursuant to rules 13.10(a) or 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). I permitted Ms Rayment, for the Minister, to also orally apply for the summary dismissal of the application on the basis that the principle of res judicata or Anshun estoppel or issue estoppel applies.
The Minister relies upon the affidavit of Rebecca Kate Roberts filed on 6 November 2003 in support of the motion. That affidavit establishes that on 13 December 2002 the applicant, through a solicitor, instituted a proceeding in the High Court of Australia to review the same decision of the RRT as is the subject of the application before this Court.
The proceedings instituted in the High Court sought writs of prohibition, certiorari and mandamus, as well as an injunction on grounds of a breach of the rules of natural justice, that the decision of the RRT involved an error of law, that the procedures required by law to be observed were not observed, that the RRT decision was an improper exercise of the power conferred upon it, that there was no evidence or other material to justify the making of the decision and that the decision was otherwise contrary to law.
The application filed in this Court, apart from referring to the decision of the Hight Court in Plaintiff S157 of 2002v Commonwealth (2003) 195 ALR 24, and the decision of the High Court in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30, simply asserts a lack of procedural fairness or natural justice and an error of law. Neither the originating process in the High Court, nor the originating process in this Court give further particulars of the grounds of review.
The affidavit of Ms Roberts establishes that on 7 February 2003 the High Court remitted the applicant's case to the Federal Court. On 30 June 2003, His Honour Selway J in the Federal Court made orders for the conduct of the proceedings as remitted. On 22 August 2003 Selway J dismissed the applicant's case for non compliance with his orders. Among other things, those orders, required particulars to be given of the grounds for review.
I will first consider whether the principle of res judicata applies in these circumstances. I will also consider whether an estoppel arises. These issues were considered recently by the Federal Court in Thayananthan v Minister for Immigration [2003] FCA 1054. Commencing at paragraph 33 of that decision, His Honour Merkel J said this:
I considered the tests to be applied for res judicata and issue or Anshun estoppel in Somanader in which, like the present case, there were successive applications for judicial review under Pt 8 of the Act and then s.75(v) of the Constitution. The question in respect of res judicata is whether the cause of action in the present proceeding is the same cause of action that was determined by Marshall J in the original proceeding: see Somanader at … [45]. In determining that question the Court should focus on the substance of the two proceedings, rather than their form. As I explained in Somanader (at … [54]) the fact that the later proceeding takes the form of an application for constitutional writs, as distinct from an application under Pt 8, does not prevent the cause of action determined in the earlier proceeding from being the same cause of action as that raised in the later proceeding.
His Honour then referred to the decision of the Federal Court in Trawl Industries of Australia Pty Limited (in liquidation) v Effem Foods Pty Limited (1992) 36 FCR 406. He went on at paragraph 35 referring to Somanader at [69]:
Issue estoppel occurs where:
“a party is precluded from contending the contrary of any precise point which has once been distinctly put in issue and has been finally determined between the parties. Unlike res judicata, issue estoppel may arise when the cause of action in each proceeding is entirely different”
At paragraph 36 His Honour said Anshun estoppel occurs when an applicant puts forward in the later proceeding matters which might have been put in the earlier proceeding. He referred to the decision of the High Court in Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 at 602, where the High Court said:
Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding.
I do not understand His Honour to be drawing any distinction between a defence and a claim. At paragraph 37 His Honour states:
In a case involving res judicata the court has no discretion to allow the proceeding to continue: Somanader at … [44]. The same is applicable to cases of issue estoppel: see Sharma v State Rail Authority of New South Wales (1988) 85 FCR 391 at 397. However, if the case involves an Anshun estoppel the court retains a discretion if special circumstances can be shown: see BC v Minister of Immigration and Multicultural Affairs [2002] FCAFC 221.
His Honour concluded that in the case before him res judicata or alternatively, issue estoppel applied. He said that in the further alternative Anshun estoppel would be applicable.
In this matter and following the authority of Thayananthan, it appears to me that the causes of action pursued by the applicant are the same. There is no relevant distinction to be drawn between a proceeding instituted under s.75(v) of the Constitution to review a decision of the RRT and a judicial review proceeding instituted either in this Court or the Federal Court under the Migration Act 1958 (Cth) or the Judiciary Act 1903 (Cth) to review the same decision. Provided that the applicable law is the same, the cause of action is the same.
A distinction might properly be drawn between a proceeding instituted under the Migration Act as it stood prior to this Court obtaining jurisdiction and a proceeding instituted under the Migration Act as it now stands. Substantial legislative changes affecting judicial review have been made. However, in this matter the relevantly applicable law was the same both in relation to the proceeding instituted in the High Court and remitted to the Federal Court and the proceeding instituted in this Court. I find that the two causes of action are the same and accordingly res judicata applies. In the circumstances, I have no discretion and I am required to dismiss the application.
Should I be wrong in that, I also find that an issue estoppel applies. The grounds of review raised in the proceedings in this Court are, in all material respects, the same as the grounds of review raised in the proceeding in the High Court and remitted to the Federal Court. Although the grounds of review were never particularised, it appears to me that the issues arising in the two proceedings are the same.
Accordingly, an issue estoppel arises in relation to each of those grounds and, once again, I have no discretion. I must dismiss the application.
I am dealing with technical issues of law and I received only limited submissions on the Minister’s oral application. It is possible that I am wrong on the question of both res judicata and issue estoppel, noting that there was no adjudication on the applicant’s claims in either the High Court or the Federal Court. The application was dismissed in the Federal Court before a final hearing was reached. In the circumstances, I will consider whether, if I am wrong in relation to res judicata and issue estoppel, the principle of Anshun estoppel is applicable. In terms of the pleadings we are not dealing with a case where the litigant could have raised the same issues in the earlier proceedings. The fact is that he did raise the same issues. However, the applicant lost the opportunity to obtain a decision on the issues raised in the earlier proceedings when he failed to comply with the Federal Court orders. The applicant blames his migration agent for that: see paragraph 18 below. His default was either his own fault or the fault of those advising him. I do not need to decide which. It was not the fault of the Minister or the Federal Court. If the applicant had complied with the Federal Court’s orders he would have obtained a decision on the issues he raised. He should have complied with the Federal Court’s orders. He failed to do so. He has not sought to appeal against the dismissal of his application. In the circumstances, in my view, the applicant is estopped under the principle of Anshun estoppel from raising the same issues in these proceedings as he could have had them dealt with in the Federal Court.
It is unnecessary to consider whether the application should be dismissed as disclosing no reasonable cause of action. The applicant was not able to sustain his proceedings in the Federal Court due to non compliance with procedural orders made by that Court. He has not put anything before this Court which would enable me to form a proper view as to whether there is any substance to his application in this Court. If the only issue were whether the applicant had an arguable case I would have been minded to give the applicant an opportunity to particularise his claims in order to try to establish an arguable case. If there had been no earlier application to review the same RRT decision I would have been minded to give the applicant the opportunity to re-plead his application before I dealt finally with it.
I will consider the issue of abuse of process raised in the Minister’s motion. If I am wrong on the issues of res judicata, issue estoppel and Anshun estoppel, I would still dismiss the application as an abuse of process. The applicant has submitted to me two documents which I accept establish that he is dissatisfied with the services provided to him by his former migration agent. He has made a complaint against the migration agent to the Office of Fair Trading of New South Wales and the Migration Agents Registration Authority. The applicant tells me that although he was separately represented by legal practitioners in the proceedings in the Federal Court, his migration agent was assisting as a conduit between him and his lawyers. The applicant asserts that the fault on the part of the migration agent was a reason for the proceedings in the Federal Court being dismissed. That factor is a relevant consideration for the Court to take into account in considering whether to dismiss an application summarily under the rules of court. However, the applicant or those acting for him and advising him are the authors of his misfortune. The applicant has remedies against his migration agent and is pursuing some of them. It would be unfair to the Minister and would bring the administration of justice into disrepute to permit the applicant to see his application in the Federal Court dismissed for default, to leave that decision untested on appeal, and then to institute an effectively identical proceeding in this Court, which suffers from the same vice of lack of particularity as the application in the Federal Court: Walton v Gardiner (1992-93) 177 CLR 378 at 393.
I will dismiss the application.
On the question of costs, the application having been dismissed, Ms Rayment has properly sought an order for costs and submits that an order fixed in the sum of $2,164 would be appropriate. The applicant tells me that he could not afford to pay that amount. However, impecuniosity is not a reason for the Court to refrain from making a costs order. I accept that the Minister's legal costs actually incurred would exceed the amount sought. The amount sought is, in my view, reasonable. I will order that the application be dismissed and that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $2,164.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 26 November 2003